Brought to you by the attorneys at

With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

If you are like us, you are a part of the growing number of people who are getting sick of the incessant commercials for those daily fantasy sports sites, FanDuel and DraftKings. Count Washington Redskins wider receiver Pierre Garcon as one of them. According to a report from ESPN, Garcon has filed a class-action lawsuit against FanDuel (but not DraftKings – more on that below). The suit, filed in federal court in Maryland, accuses FanDuel of misusing players’ names and likenesses without proper licenses or permission.

To be fair, Garcon is not necessarily upset about the sheer volume of the commercials, but rather the frequency with which his name occurs in them. For example, in one 28-minute infomercial, Garcon’s name is seen 53 times. We assume the 53 times is more than overkill as Garcon would have taken issue with the use of his name even once.

This case is interesting on several fronts. First, this isn’t necessarily a case of a company fraudulently acting as if a famous person is endorsing its product. While we admittedly have not seen every commercial or the 28-minute infomercial (thankfully), we have not seen an instance where Garcon’s name is being used in a manner that would even imply that he is a FanDuel supporter. Rather, Garcon’s name is used in examples of how the fantasy sports site operates. Users draft players like Garcon based on daily “salaries” contingent on the player’s statistics and value. As a decent player with decent fantasy value, Garcon’s name and statistics are bound to come up in the examples.

FanDuel apparently takes the position that it has every right to use Garcon’s name in this context. As FanDuel spokeswoman Justine Sacco said in a statement, “We believe this suit is without merit. There is established law that fantasy operators may use player names and statistics for fantasy contests.” The law she is referring to is the case of National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd 1997), in which the Second Court of Appeals held that federal copyright statutes do not allow for the ownership of data. If this case really is about data, then maybe FanDuel has an ally.

Apart from the merits, the more intriguing thing about this lawsuit is the fact that DraftKings, who advertises in a similar manner to FanDuel, is not a party. The simple answer to its omission is that DraftKings has a marketing relationship with the NFL Players Association and such it is permitted to use the players in its advertising. The more interesting question though is whether DraftKings played any role in urging Garcon and the NFLPA to bring the suit in the first place. What better way to take down a competitor than to sit back and watch a class action lawsuit unfold against it?

Disclaimer: Do not Google “dental fluorosis,” for as with every Google Image search, you are bound to discover the most graphic examples, which in this case aren’t pretty. Earlier this month, the Fourth Circuit Court of Appeals affirmed a Maryland district court’s dismissal of a case against Nestle, Dannon, and Gerber involving dental fluorosis. See Nemphos v. Nestle Waters North America, Inc., et al, No. 13-2146 (4th Cir. Jan. 8, 2015). Michelle Nemphos, as legal guardian of her child, brought suit against these defendants for allegedly giving her daughter dental fluorosis. According to the complaint, the plaintiff’s daughter consumed Nestle’s infant formula and Poland Spring water, Gerber’s baby foods and apple juice, and Dannon’s Fluoride To Go bottled water. According to the CDC, dental fluorosis occurs when young children consume too much fluoride over long periods when teeth are still developing under the gums. The effects can range from barely noticeable white spots (okay, you can click that one) to pitting. Once the teeth erupt through the gums, they will no longer develop D.F., and apparently, once a child reaches eight years of age, that child can no longer develop D.F. The CDC warns of several common sources including, as the title stated, toothpaste, if swallowed, and water and processed beverages, which can account for up to 75 percent of fluoride intake. Among the numerous recommendations proffered by the CDC include labeling the fluoride concentration of bottled water, as such labeling would allow consumers to make informed decisions.

So what does the FDA say about fluoride in bottled water? According to the FDA’s science wizards, like these two obviously candid scientists, the amount of fluoride in bottled water varies from .8 to 2.4 milligrams per liter of fluoride. One of the factors used by the FDA in determining the acceptable amount of fluoride in bottled water is the annual average daily air temperature at the location where the bottled water is sold. See why I called them wizards? The FDA does not require bottled water manufacturers to list the fluoride content on the bottle, but it does require fluoride additives, if used, to be listed. In 2006, the FDA approved this labeling: “Drinking fluoridated water may reduce the risk of tooth decay.”

With respect to Ms. Nemphos’s case, the district court found that if it were to grant the relief sought by Ms. Nemphos, it would require the defendants to maintain fluoride levels below the FDA’s established limits (which again were set by stock photo wizards) or to contain warnings not required by the FDA. Ms. Nemphos argued her failure to warn and misleading marketing claims against Nestle and Dannon were not preempted by federal law. To its credit, the Fourth Circuit made their its thorough history of food packaging and labeling as interesting as possible. Essentially, the Fourth Circuit found that the Nutrition Labeling and Education Act of 1990, which contains the national uniform nutrition labeling provisions, forbids states from establishing any requirements that are not identical to federal requirements in five areas of food labeling, including “standard of identity.” Reduced to its essence, federal statutes convey significant powers to the FDA to regulate food safety. This statutory charge reflects the all-around benefits of uniform food labeling. One of the FDA’s crucial tools in its regulatory effort is the standard of identity.

Regarding the other products, the Fourth Circuit brushed off Ms. Nemphos’s argument in a much briefer fashion, stating “Nemphos’s concern thus involves the failure to warn that fluoride—even at permissible levels, without any addition by manufacturers—may contribute to causing dental fluorosis over time.”

At Abnormal Use, we encourage those over the age of eight to brush their teeth and drink water, so long as the average daily temperature where you live fits the FDA’s guidelines. Also, if you swallow your toothpaste, stop, as that’s just weird.

Since we are in the midst of March Madness, we here at Abnormal Use take this opportunity to relay a recent apropos settlement involving two sports brand powerhouses. According to the Baltimore Sun, last month, Under Armour and Nike settled a trademark infringement lawsuit arising from Nike’s use of the certain phrasing in its advertising. In its complaint filed early last year in federal district court in Maryland, Under Armour alleged that Nike launched an advertising campaign that appropriated “I Will” prominently and repeatedly, which suggests Under Armour’s longstanding use of its iconic “I Will” tagline for its similar performance products. Under Armour claimed that Nike used slogans such as “I will finish what I started” and “I will sweat while they sleep” in various social media ads. The company also complained that Nike used a variation of Under Armour’s phrase “protect this house” by using the Nike tag line “I will protect my home court.” As one might expect, the terms of the settlement were not revealed. (The Sun quotes Under Armour as saying only: “The litigation has been resolved on a confidential and mutually agreeable basis.”). But one can only imagine the settlement amount was a drop in Nike’s proverbial bucket of revenue. Quite frankly, when we here at Abnormal Use first got wind of the “I Will” dispute, we thought it was Under Armour’s, not Nike’s, use of the phrase that was causing such flack. Why? “I Will” is an appropriate and clever response to Nike’s universally known command “Just Do It.”

For whatever reason, insurance companies may not have the best reputations. So, it comes as no one surprise that a recent Tumblr post entitled, “My Sister Paid Progressive Insurance to Defend Her Killer in Court,” has gone viral and garnered much attention across the Internet. The piece, penned by comedian Matt Fisher, documents his family’s struggle to recover underinsured motorist (UIM) benefits under a Progressive auto policy. Fisher’s sister, Katie, was killed in a motor vehicle accident after another driver reportedly ran a red light. The liability carrier for the other motorist tendered its policy limits shortly after the accident. Thereafter, the family turned to Progressive for additional UIM benefits. For reasons not specifically documented in his post, Progressive denied coverage. In order to pursue those benefits, the family filed suit against the other driver. Progressive, as the UIM carrier, appeared in the matter and defended the case. Although the jury ultimately returned a verdict for the Fishers in the matter following a trial last week, Matt Fisher was none too pleased with Progressive’s conduct, leading him to write a series of posts on the issue.

First off, it should be noted that there is not much information in the public record about the specifics of this case, other than Fisher’s original post and a brief reply from Progressive. Accordingly, it’s challenging to opine about the specifics of this case without access to trial transcripts, court orders, policy documents, or other information that might usually be available in a reported case. But, as we see it, much of the confusion here lies in the very nature of UIM coverage.

Indeed, following Fisher’s post, a firestorm was unleashed against Progressive. Celebs such as Wil Wheaton and Patton Oswalt took to Twitter, campaigning against the company. The story has also been well-documented on other sites, including Thought Catalog and Gawker. Despite this fanfare, however, Progressive appears to be getting a bad rap, primarily because of a great misunderstanding of the sometimes counterintuitive nature of UIM coverage and benefits.

For starters, we do not know exactly why Progressive denied coverage in the first place. As noted above, we do not have access to many of the relevant documents in this case, including any letters explaining the denial of coverage. But, we imagine it may have had something to do with perceived liability. In his own post, Fisher, who attended the trial, admits that there may have been some issue with his sister’s comparative fault:

Now, I don’t discount the possibility that Katie was at fault in the accident, but it never really looked that way. The only witness who gave a statement on the day said that Katie had the light, etc. The totality of the evidence left some room for argument, but that will be the case any time there’s a catastrophic car accident that doesn’t happen underneath an array of video cameras.

Maryland is one of the few remaining contributory negligence states: if Katie was 1% at fault in the accident, there is no liability to the other driver or Progressive.

In other words, under Maryland law, if Katie played any role – no matter how slight – in contributing to the accident, Maryland state law would not permit her to recover. Thus, we must consider “the totality of the evidence” and Maryland’s adherence to the contributory negligence doctrine when analyzing Progressive’s initial coverage decision and subsequent actions in defending the case (as was its right to do so).

Second, a simple explanation of the UIM concept may help to clarify the misguided notion that “Progressive defended Katie’s killer.” In reply to a Progressive statement that it did not serve as an attorney for the defendant, Fisher outlined the conduct of “Progressive’s legal team” at trial in support of his argument. In this instance, both Fisher and Progressive are correct – to a degree. Progressive did employ lawyers – not in-house – to represent its interests in the matter. While Progressive essentially stepped into the shoes of the defendant at trial, however, it did not serve as his attorney. The lawyers represented Progressive. Even though the defendant may have sat in the chair right next to Progressive’s lawyer, there was not an attorney-client relationship.

To the lay person, it may be a strange dynamic when one’s own insurance company technically “defends” the underinsured motorist. However, here, Progressive had an ostensibly legitimate coverage position, and this was the forum available to the insured in which to litigate it. While we do not know all of the facts in this matter, nor are we aware of Progressive’s internal decision-making process, UIM cases are very common and sometimes do culminate in a trial where this very dynamic comes into play.

We recognize Fisher’s frustration. Sitting through a civil trial and fighting with an insurer is the last thing anyone wants to do after the loss of a loved one. Just as every accident does not necessitate the insurer paying under its policy, every accident with an uninsured/underinsured policy does not necessarily entitle the insured to UM/UIM benefits. Insurers, including Progressive, should investigate every accident and accordingly make coverage determinations based on liability and damages.

One consideration that practitioners need to always keep in front of them is how choice of law principles can affect what state’s law applies in an action. A recent opinion by the District of Maryland is a good example of how the application of choice of law rules can result in the application of multiple states’ laws in one action. Desrosiers v. MAG Indus. Automation Sys., LLC, No. WDQ-07-2253, 2010 WL 4116991 (D. Md. Oct. 19, 2010). This opinion does not discuss any novel choice of law rules but is relevant to show the importance of the question — “What law is going to apply?”

David Desrosiers was killed while operating a horizontal boring machine at work in Maryland. The machine was manufactured and sold by a Wisconsin company in 1953. Bridget Desrosiers sued the manufacturer as well as its holding companies as a result of David Desrosiers’ death asserting various products liability claims. She brought both a wrongful death action and a survival action.

The Maryland district court granted summary judgment for the two holding company defendants and granted in part and denied in part summary judgment for the manufacturer.

In making its determination on defendants’ motions for summary judgment, the court first applied the basic rule that “[i]n a diversity case, the choice of law rules are those of the state in which the Court sits.” Therefore, the Court looked to the choice of law rules of Maryland. “Maryland generally follows the principle of lex loci delicti, which applies the law of the place ‘where the last event required to give rise to the tort occurred.'” Further, in Maryland, wrongful death actions are governed by statute.

Therefore, on Desrosiers’ survival claims, the Court applied lex loci delicti and determined that Maryland law applied because the decedent was at his work site in Maryland at the time of the injury that resulted in his death. However, on Desrosiers’ wrongful death claims, the Court looked to Maryland statutory law that stated that “if a wrongful act occurred in another state, [the Court] shall apply the substantive law of that jurisdiction.” The Court interpreted “wrongful act” as the act that entitles another party to recovery, and since Desrosiers claimed that the machine was defectively designed, the “wrongful act” occurred in Wisconsin where it was manufactured. The Court, therefore, applied Wisconsin law on Desrosiers’ wrongful death claims.

The Court applied both Maryland law and Wisconsin law throughout its opinion. The differences between Maryland law and Wisconsin law were not outcome determinative in this matter; however, it could be in other matters. That said, we need to always determine at the outset of a matter what law applies and be ready for any differences in the application of those states’ laws.